JOINT DISSENTING OPINION OF JUDGES CAFLISCH AND CABRAL BARRETO

1. We concur with the finding of the judges of the majority that Article 1 of Protoc ol No. 1 applies in this case. But we would have preferred an approach based on the premise that the applicants, at the relevant time, enjoyed a “legitimate expectation” as defined by the Court ( see Pin e Valley Developments Ltd and Others v. Ireland , 29 November 1991, Series A no. 222).

2. Indeed various treaties and domestic laws grant provisional protection to trade mark s from the date of their filing with the competent authority, the National Institute for Industrial Proper ty (NIIP) in the present case. The filing affords some degree of priority and pro te ction for the trade mark until its definitive registration, which may take some time. In the present case, registration was finally refused on the basis of the relevant legislation , namely, the Portuguese Code of Industrial Property in i ts version of 24 January 1995. Article 1 89 of that Code provides that “[r] egistr ation shall also be refused of a mark ... containing ... expressions ... that are contrary to ... domestic ... legislation”, and that legislation included the 1986 B ilateral Agreement between Czechoslovakia and Portugal , which had become Portuguese law .

3. Items such as clientele, reputation and urbanisation certificates are intangible in character; they are nevertheless “rights”, that is to say, “interests protected by law”, as has been recognised by the Court. In the present judgment the Court extends its recognition to applications for the registration of a trade mark, which therefore enjoy the status of “possessions” within the meaning of Article 1 of Protocol No . 1. We agree with the Court but would prefer to hold that the filing of an application for registration of a trade mark crea tes a “legitimate expectation” in the sense of the case-law on Article 1.

4. Our view is essentially based on the following elements :

( i ) The Portuguese cour ts themselves have held that the filing of an application for the registration of a trade mark creates an “ expectativa jur í dica ”, a concept practically cotermin o us with that of “legitimate expectation”.

(ii) Requests for registration can be transferred or form the ob ject of licensing agreements.

(iii) On account of the application for registration, t he trade mark acquires an economic value at both the national and international levels. It is protected from interference by third parties , any interference entail ing a duty of reparation , and enjoys priority over              subsequent requests by third parties, that is , an expectation that the applicant will not be deprived of the trade mark by subsequent applications for registration .

( i v) The NIIP has no discretion to grant or refuse registration when the legal conditions existing at the time of the filing are met , as they were until the 1986 B ilateral A greement intervened. Indeed, the priority attaching to the filed (but not yet registered) trade mark              would become an empty shell if it could be nullified at any time by the introduction of new legislation .

5. T he above elements prompt the conclusion that the filing of an application for the registration of a trade mark, as distinguished from registration itself , creates rights in favour of the applicant , in particular a right to have the trade mark registered. That right is of a conditional nature ; it depends on the fulfilment of the statutory conditions for registration existing at the time of the filing . We are, in other words, in the presence of a “legitimate expectation” rather than a “possession” (“ bien ”) in the se nse of Article 1 of Protocol No. 1 . Under the Court ’ s case-law that expectation cannot , however, be cancelled by subsequent national legislation, even if the latter is based on treaty law.

6. Having established ( i ) that the applicant company was the beneficiary of a “legitimate expectation” and (ii) was protected by Article 1 of Protocol No. 1 , it remains to be seen whether it was deprived of that expectation by conduct of Portuguese State organs that was contrary to Article 1.

7. For the majority of the Court ( see paragraph 83 of the judgment), the present case was “mainly [ about ] the manner in which the national courts interpreted and applied domestic law in proceedings between two rival claimants”, and had therefore to be distinguished ( paragraph 82) from cases such as Maurice v. France ( [GC], n o. 11810/03 , ECHR 2005-IX ) , and Lecarpentier v. France ( n o. 67847/01 , 14 February 2006 ). For the majority, the present dispute is basically one between private parties, rather than between an individual and a State, in other words a situation which – although the majority does not expressly say so – comes close to one that should be viewed under Article 6: the only point that matters ( see paragraph 85 of the judgment) is whether there has been “any arbitrariness or manifest unreasonableness” on the part of the organs of the Portuguese State. The majority reaches the conclusion that there has not.

8. In our view, the Court ’ s reasoning is both debatable and contradictory. The case opposes an individual applicant against a State; the applicant company ’ s grievance is that i t has been deprived of a “possession” or “legitimate expectation” by the Portuguese courts. Accordingly, the case does not pertain to a “private” conflict between private comp anies. The majority is wrong in think ing the contrary and, in fact, in view ing the issue as something akin to Article 6. And, even if it were right – herein lies the contradiction – why did it bother at all with a lengthy analysis (see paragraphs 66-78 of the judgment) of the applicability of Article 1 of Protocol No. 1?

9. In examining whether there was an unlawful interference with the applicant company ’ s “legitimate expectation”, the following points should be borne in mind :

– It appears doubtful that the act of dispossession brought ab out by the Portuguese Code of I ndustrial Property, as a consequence of the B ilateral Agreement of 1986, was really performed in the public interest.

– If, like us, one assumes, that the applicant for the registration of a trade mark enjoys a “legitimate expectation”, protected by Article 1 of Protocol No. 1 , that expectation , and in particular the priority inherent there in , w as destroyed through the retroactive application of the 1986 Agreement.

– As a company of foreign nationality, the applicant is protected by the “general principles of international law” mentioned in the first paragraph of Protocol N o. 1 , such as the principle of non- discrimination and the rule requiring prompt, adequ ate and ef fective compensation, which has bee n disregarded in the present case.

The above considerations lead us to the conclusion that there has bee n an unlawful interference with the applicant company ’ s “legi ti mate expectation” and, accordingly , a violation of Article 1 of Protocol N o. 1 .

10. By concluding the B ilateral Agreement of 1986 and applying it retroactively, the Portuguese authorities have objectively caused da mage to the applicant company. Whether they did so deliberately or not might have affected the quantum of damages to be awarded , had the Court found in the applicant company ’ s favour. As it did not, the issue can remain undecided.